Code Section Group

Penal Code - PEN

PART 2. OF CRIMINAL PROCEDURE [681 - 1620]

  ( Part 2 enacted 1872. )

TITLE 10. MISCELLANEOUS PROCEEDINGS [1268 - 1424.5]

  ( Title 10 enacted 1872. )

CHAPTER 4. Examination of Witnesses Conditionally [1335 - 1345]
  ( Chapter 4 enacted 1872. )

1335.
  

(a) If a defendant has been charged with a public offense triable in a court, he or she in all cases, and the people in cases other than those for which the punishment may be death, may, if the defendant has been fully informed of his or her right to counsel as provided by law, have witnesses examined conditionally in his or her or their behalf, as prescribed in this chapter.

(b) If a defendant has been charged with a serious felony or in a case of domestic violence, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter, if there is evidence that the life of the witness is in jeopardy.

(c) (1) If a defendant has been charged with human trafficking, pursuant to Section 236.1, and there is evidence that the victim or material witness has been or is being dissuaded by the defendant or a person acting on behalf of the defendant, by intimidation or physical threat, from cooperating with the prosecutor or testifying at trial, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter.

(2) If a defendant has been charged with human trafficking, pursuant to Section 236.1, and the court finds that there is a reasonable basis to believe that the material witness will not attend the trial because he or she is under the direct control of the defendant or another person involved in human trafficking and, by virtue of this relationship, the defendant or other person seeks to prevent the witness or victim from testifying, and if the defendant has been fully informed of his or her right to counsel as provided by law, the court may have a witness examined conditionally as prescribed in this chapter.

(d) If a defendant has been charged with a case of domestic violence and there is evidence that a victim or material witness has been or is being dissuaded by the defendant or a person acting on behalf of the defendant, by intimidation or a physical threat, from cooperating with the prosecutor or testifying at trial, the people or the defendant may, if the defendant has been fully informed of his or her right to counsel as provided by law, have a witness examined conditionally as prescribed in this chapter.

(e) For the purposes of this section, the following definitions shall apply:

(1) “Domestic violence” means a public offense arising from acts of domestic violence as defined in Section 13700.

(2) “Serious felony” means a felony listed in subdivision (c) of Section 1192.7 or a violation of Section 11351, 11352, 11378, or 11379 of the Health and Safety Code.

(Amended by Stats. 2014, Ch. 709, Sec. 1. (AB 1610) Effective January 1, 2015.)

1336.
  

(a) When a material witness for the defendant, or for the people, is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehension that he or she will be unable to attend the trial, or is a person 65 years of age or older, or a dependent adult, the defendant or the people may apply for an order that the witness be examined conditionally.

(b) When there is evidence that the life of a witness is in jeopardy, the defendant or the people may apply for an order that the witness be examined conditionally.

(c) As used in this section, “dependent adult” means a person, regardless of whether the person lives independently, who is between the ages of 18 and 65, who has physical or mental limitations which restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities or whose physical or mental abilities have diminished because of age. “Dependent adult” includes any person between the ages of 18 and 65, who is admitted as an inpatient to a 24-hour facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.

(Amended by Stats. 2018, Ch. 70, Sec. 4. (AB 1934) Effective January 1, 2019.)

1337.
  

The application shall be made upon affidavit stating all of the following:

(a) The nature of the offense charged.

(b) The state of the proceedings in the action.

(c) The name and residence of the witness, and that his or her testimony is material to the defense or the prosecution of the action.

(d) That any of the following are true:

(1) The witness is about to leave the state, or is so sick or infirm as to afford reasonable grounds for apprehending that he or she will not be able to attend the trial, or is a person 65 years of age or older, or a dependent adult, or that the life of the witness is in jeopardy.

(2) That the witness is a victim or a material witness in a human trafficking case who has been or is being intimidated or threatened, as described in paragraph (1) of subdivision (c) of Section 1335, from cooperating with the prosecutor or testifying at trial.

(3) That the witness is a victim or material witness in a domestic violence case who has been or is being intimidated or threatened, as described in subdivision (d) of Section 1335 from cooperating with the prosecutor or testifying at trial.

(Amended by Stats. 2014, Ch. 709, Sec. 2. (AB 1610) Effective January 1, 2015.)

1338.
  

The application may be made to the court or a judge thereof, and must be made upon three days’ notice to the opposite party.

(Amended by Stats. 1905, Ch. 540.)

1339.
  

If the court or judge is satisfied that the examination of the witness is necessary, an order must be made that the witness be examined conditionally, at a specified time and place, and before a magistrate designated therein.

(Amended by Stats. 1905, Ch. 540.)

1340.
  

(a)  The defendant has the right to be present in person and with counsel at the examination, and if the defendant is in custody, the officer in whose custody he or she is, must be informed of the time and place of the examination, and must take the defendant thereto, and keep him or her in the presence and hearing of the witness during the examination.

(b) If the court determines that the witness to be examined is so sick or infirm as to be unable to participate in the examination in person, the court may allow the examination to be conducted by a contemporaneous, two-way video conference system, in which the parties and the witness can see and hear each other via electronic communication.

(c) Nothing in this section is intended to require the court to acquire two-way video conference equipment for these purposes.

(Amended by Stats. 2008, Ch. 14, Sec. 1. Effective January 1, 2009.)

1341.
  

If, at the designated time and place, it is shown to the satisfaction of the magistrate that the stated ground for conditional examination is not true or that the application was made to avoid the examination of the witness at the trial, the examination cannot take place.

(Amended by Stats. 2009, Ch. 567, Sec. 3. (SB 197) Effective January 1, 2010.)

1342.
  

The attendance of the witness may be enforced by a subpoena, issued by the magistrate before whom the examination is to be taken.

(Enacted 1872.)

1343.
  

The testimony given by the witness shall be reduced to writing and authenticated in the same manner as the testimony of a witness taken in support of an information. Additionally, the testimony may be video-recorded.

(Amended by Stats. 1997, Ch. 19, Sec. 1. Effective January 1, 1998.)

1344.
  

The deposition taken must, by the magistrate, be sealed up and transmitted to the Clerk of the Court in which the action is pending or may come for trial.

(Enacted 1872.)

1345.
  

The deposition, or a certified copy of it, may be read in evidence, or if the examination was video-recorded, that video-recording may be shown by either party at the trial if the court finds that the witness is unavailable as a witness within the meaning of Section 240 of the Evidence Code. The same objections may be taken to a question or answer contained in the deposition or video-recording as if the witness had been examined orally in court.

(Amended by Stats. 1997, Ch. 19, Sec. 2. Effective January 1, 1998.)

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